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State Supreme Court to decide fate of businessman's Internet cafe or casino

By Milan Simonich

Texas-New Mexico Newspapers

Posted:
06/29/2013 04:50:04 PM MDT

SANTA FE >> McDonald's offered a Monopoly sweepstakes game with its burgers and fries. Coca-Cola had a promotion in which certain bottle caps could be exchanged for prizes.

Businessman Michael T. Vento says he merely followed the example of those corporate giants when he provided customers an opportunity to win sweepstakes prizes at his Internet cafe in Las Cruces.

Gov. Susana Martinez, a district attorney when Vento was operating his Internet cafe, prosecuted him for commercial gambling.

Martinez's staff won the first round, persuading a jury to convict Vento in 2009. The state Court of Appeals overturned his conviction last summer.

Now the New Mexico Supreme Court has accepted the case and will decide whether Vento was an enterprising businessman on the right side of the law or the proprietor of a high-tech gambling operation that violated state statutes.

Vento, now 63, never had a conviction except for speeding tickets until the gambling case.

In her brief, Vento's public defender, Mary Barket, called him a law-abiding citizen who "took care to comply with New Mexico's gambling laws in setting up a sweepstakes in conjunction with his Internet cafe."

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He distributed forms to customers, advising them that they were buying time on the Web when they signed up to use one of the 21 computer terminals at his Internet Access Depot. He shuttered his business after it was raided by the state Gaming Control Board in July 2008. The agency seized his computers.

Vento charged 10 cents a minute or $6 an hour for access to the Internet at his cafe. But he required an initial payment of at least $20, according to court records.

His defenders say all of it was on the up and up.

"To entice people to visit his place of business, Michael offered a sweepstakes," Barket wrote in her brief. "One hundred sweepstakes credits were offered every 24 hours without purchasing anything."

Top prize in each sweepstakes game was $3,000, though higher payoffs were possible by rolling over winnings.

One means of checking whether one won a sweepstakes was through "a series of casino-like games" on the Web, prosecutors said. Customers also could simply swipe their card to see if they had won a prize or ask a cashier to check the card for them.

Assistant Attorney General Jacqueline R. Medina said in her brief that Vento's Internet operation was illegal, no matter how he tried to disguise it.

"It is abundantly clear that the manner in which the defendant ran his so-called sweepstakes was nothing more than an attempt to circumvent New Mexico's statutory provisions that regulate and prohibit gambling," Medina said.

By the state's account, customers bought about $640,000 of additional sweepstakes entries from their winnings.

Medina said Vento wants the Supreme Court to believe that "his patrons purchased $806,207 of Internet time and that he gave sweepstakes entries to them for free."

Vento's lawyers have said that was exactly how his Internet cafe operated. His cut was 8 percent of sweepstakes winnings, taken before a payout, according to one account he gave an investigator from the New Mexico Gaming Control Board.

"Why would patrons pay for the internet when they could access it free at most McDonald's, Starbucks, public libraries and other businesses?" Medina asked.

One reason might be that one needs a laptop of his own at businesses such as Starbucks. No computer terminals are available to the public in most coffee shops or restaurants.

Even so, prosecutors say Vento's Internet business was "nothing more than a subterfuge" that siphoned money from state-run gambling operations such as the lottery.

At Vento's trial, the government and his lawyer battled over the wording of jury instructions. His side wanted an explanation of a sweepstakes, a request that was denied by state District Judge Lisa C. Schultz.

She simply read the jury a gambling statute, and that was why the state Court of Appeals overturning Vento's conviction.

Vento had checked the Gaming Control Board's website and it said a gambling place did not include a location where a business offered a sweepstakes promotion. To his way of thinking, that put him in league with McDonald's, not a casino.

The Court of Appeals found that the jury should have been instructed on betting, and that there was insufficient evidence to support a conviction of Vento for having gambling devices in the form of his computer terminals.

The Supreme Court will rule based on the briefs filed by lawyers for the government and Vento. The five justices are scheduled to read the briefs in July. They could rule in a few months or their decision may take more than a year.